Employees have no protection from snooping bosses

Employees all too often think they are "bullet-proof" when they post
anything on Facebook or Twitter. But as the law stands today, if they bring
their employer into disrepute, the boss of the firm is well within their
legal right to sack them, writes Emma Barnett.

You will have heard about a few high-profile cases in which someone has lost their job because of a Facebook or Twitter post.

However, the number you can reference is probably quite limited. And yet, according to lawyers, how bosses control the use of social media by their staff and utilise it to judge job candidates, is one of the biggest legal employment issues currently on the agenda.

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But he was contacted by his manager while on holiday in the US and ordered to remove his CV. On his return, Mr Flexman was accused of “inappropriate use of social media” and called to attend an internal disciplinary hearing.

He was handed a list of disciplinary charges and told he could be sacked, Reading Employment Tribunal heard. He later resigned.

The outcome is still unknown, but the Flexman and BG Group tribunal is a rarity. Most cases of this nature are being settled outside court, as the majority of employers do not wish to have the negative publicity associated with clamping down on this area, according to Paula Whelan, an employment partner at Shakespeares law firm.

Now 30pc to 40pc of all Ms Whelan’s legal cases are social media-related but what are employers’ rights when it comes to snooping on staff and potential employees?

“Employees think they are bullet-proof when they post anything on Facebook or Twitter. But if they bring their employer into disrepute, the boss of that firm is well within their legal right to sack them,” she explains.

“By posting something even vaguely negative about your work on these social media sites, it’s breaking the relationship of trust and confidence between the employer and employee and the company reserves the right to sack the employee.”

Ms Wheelan advises that all companies update their IT policy and disciplinary procedures to reflect this new arena. And crucially – companies must make these changes extremely clear to their staff.

Revised IT policies at some of the forward-thinking companies now include the right of an employer to track anything an employee writes on a social network, if they do so using the company’s IT equipment.

Right now, companies are also well within their legal rights to sack a staff member over something they said referencing their job on their Facebook page (even if their privacy settings mean the world wide web cannot see their updates).

Equally, it still remains a grey area as to what type of comment on social media constitutes “bringing a company into disrepute”. Somebody writing “I had a terrible day at work”, and that person’s job being publicly available via a search on LinkedIn, could get somebody in trouble with their company, according to Ms Whelan – as it could make the firm concerned look like a bad place to work.

When is comes to recruiting, employers are still within their rights to perform an internet search on the candidate. However, where things can become tricky for an employer is if the interviewee (who didn’t get the job) feels they were discriminated against by additional information the interviewer judged them on after an internet search.

They can then request a “subject access requirement” under the data protection act, to see what information the interviewer has used to make his or her decision.

Currently, that will not include an internet search, as that is a process and not a document-based activity. However, Ms Whelan thinks that will change and employers, if making a recruitment decision using information gleaned from search engines such as Google, need to be prepared to document their internet searches.

Ultimately, the law has yet to catch up with social media and any changes to protect both the employer and employee need to come from overdue legislation and the Information Commissioner’s Office.

However, companies must be prudent and ensure that their IT policy is both flexible and up to date – to reflect the company’s stance on social media use. Plus, more than ever before, this position must be clearly communicated to all staff members.